REPORTABLE

IN THE SURPEME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     999        OF 2008 (Arising out of SLP (Crl.) No.3018 of 2007)

Radhe …Appellant

Versus

State of Chhattisgarh …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division

Bench of the Chhattisgarh High Court dismissing the appeal

filed by the appellant (hereinafter referred to as the ‘accused’).

3. Challenge before the High Court was to the judgment of

the  learned  Additional  Sessions  Judge,  Manendragarh.  The

trial  Court  had  found  the  appellant  guilty  of  offence

punishable under Section 302 of the Indian Penal Code, 1860

(in short the ‘IPC’) but found the co-accused, namely,  Kashi

and Dev Kumar to be not guilty. The appellant was sentenced

to undergo RI for life and fine with default stipulation.  

4. Prosecution version as unfolded during trial is as follows:

On 10.11.1997 Gyan Singh (hereinafter referred to as the

‘deceased’) went to Ramkhilawan’s house for collecting kanda

(eatable  bulb).  When he did not come back till  evening, his

father Heeralal went in search of the deceased to the house of

Ramkhilawan  in  the  evening  at  around  7.00  p.m.  Heeralal

along  with  Ramkhilawan  and  his  son  Gyan  Singh  were

returning to his house.  On the way, when they reached near

the house of Kashi, Kashi started scolding Ramkhilawan, who

was  refrained  from  doing  so.  Therefore,  a  quarrel  erupted.

Appellant who was carrying pharsa and Kashi a lathi started

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beating.  Appellant  gave  a  pharsa  blow  on  the  leg  of  the

deceased. The leg was cut and turned into two pieces. Gyan

Singh fell down, thereafter Radhe chopped his other leg and

assaulted  Gyan  Singh  with  pharsa  on  his  thigh  and  other

parts of the body. Heeralal came to rescue him. Dev Kumar

assaulted him with a lathi on his head and also gave a blow

on his left shoulder. Heeralal fell  down. When Ramkhilawan

intervened, he was assaulted by Dev Kumar. In the meantime,

Beerbali, who is son of Ramkhilawan came there.  He was also

beaten by Radhe with pharsa. Kashi assaulted Ramkhilawan

with a club. Gyan Singh instantaneously died at the spot and

others  were  injured.   Accused  appellant  and his  associates

Kashi and Dev Kumar fled away from the place of occurrence.  

Heeralal  gave  intimation  and  lodged  First  Information

Report.  Both  the  documents  were  recorded  by  Arjun  Ram,

Assistant  Sub  Inspector,  Head  Constable  Jagsai  conducted

inquest, prepared report and forwarded the dead body of Gyan

Singh  for  autopsy  to  Community  Health  Centre,

Manendragarh.  He  collected  blood  stained  and  plain  earth

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from the spot. Dr. S.K. Chainpuria conducted autopsy.  On

examination, he found nine injuries on the body of deceased

and according to his opinion, the cause of death was syncope

due  to  shock  and  external  hemorrhage  caused  by  multiple

injuries. All the injuries found on the body of Gyan Singh were

caused by hard and/or sharp objects except one which was

found to be abrasion and present below left knee. Death was

homicidal  in  nature.  He  prepared  autopsy  report  and

describing all the injuries found on the body of the deceased

forwarded the report to the concerned police station. Injured

Beerbali,  Ramkhilawan  and  Heeralal  were  also  sent  for

medical examination. On medical  examination, it was found

that  they  have  sustained  various  injuries.  On  the

memorandum statement of accused Kashi one club and one

pharsa were recovered from the appellant and seized.  From

Dev  kumar  one  club  was  seized.  After  post  mortem

examination, the clothes found on the body of the deceased

were  also  collected.  The  statements  of  witnesses  were

recorded. The seized pharsa, clothes and earth were sent for

chemical  examination  and  on  examination  stained  earth,

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pharsa and clothes of Gyan Singh were found to be stained

with blood.

After  completion of  investigation,  the charge sheet  was

filed  in  the  Court  of  Additional  Chief  Judicial  Magistrate,

Manendragarh,  who  committed  the  case  to  the  Court  of

Sessions for trial.  Charges were framed against the appellant

and co-accused.    The accused-appellant pleaded innocence

and false implication.   

5. Before  the  High  Court  the  main  stand  was  that  the

assault, if any done by the appellant was in exercise of right of

private defence and, therefore, conviction was not called for.

The  learned  counsel  for  the  respondent  on  the  other  hand

supported the judgment of the trial Court.  The High Court did

not accept appellant’s plea and dismissed the appeal.  Stands

taken before the High Court were reiterated in this appeal.

6. A  plea  of  right  of  private  defence  cannot  be  based  on

surmises and speculation. While considering whether the right

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of private defence is available to an accused, it is not relevant

whether he may have  a chance to inflict  severe  and mortal

injury on the aggressor. In order to find whether the right of

private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting.

Section 97 IPC deals with the subject-matter of right of private

defence. The plea of right comprises the body or property (i) of

the person exercising the right; or (ii) of any other person; and

the right may be exercised in the case of any offence against

the body, and in the case of offences of theft, robbery, mischief

or criminal trespass, and attempts at such offences in relation

to  property.  Section 99 lays down the limits  of  the right of

private  defence.  Sections  96  and 98  give  a  right  of  private

defence  against  certain  offences  and  acts.  The  right  given

under Sections 96 to 98 and 100 to 106 IPC is controlled by

Section 99.  To claim a right of private defence extending to

voluntary causing of death, the accused must show that there

were  circumstances  giving  rise  to  reasonable  grounds  for

apprehending  that  either  death  or  grievous  hurt  would  be

caused to him. The burden is on the accused to show that he

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had a right of private defence which extended to causing of

death. Sections 100 and 101, IPC define the limit and extent

of right of private defence.  

7. Sections 102 and 105, IPC deal with commencement and

continuance  of  the  right  of  private  defence  of  body  and

property  respectively.  The  right  commences,  as  soon  as  a

reasonable apprehension of danger to the body arises from an

attempt, or threat, or commit the offence, although the offence

may not have been committed but not until that there is that

reasonable  apprehension.  The  right  lasts  so  long  as  the

reasonable apprehension of the danger to the body continues.

In  Jai  Dev v.  State  of  Punjab (AIR  1963  SC  612),  it  was

observed  that  as  soon  as  the  cause  for  reasonable

apprehension  disappears  and  the  threat  has  either  been

destroyed or has been put to route, there can be no occasion

to exercise the right of private defence.  

8. The above position was highlighted in Rizan and Another

vs. State of Chhattisgarh, through the Chief Secretary, Govt. of

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Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and

Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).

9. Merely because there was a quarrel and accused persons

claimed  to  have  sustained  injuries,  that  does  not  confer  a

right  of  private  defence  extending  to  the  extent  of  causing

death as in this case. Though such right cannot be weighed in

golden  scales,  it  has  to  be  established  that  the  accused

persons were under such grave apprehension about the safety

of their life  and property  that retaliation to the extent done

was absolutely necessary. No evidence much less cogent and

credible  was  adduced  in  this  regard.  The  right  of  private

defence as claimed by the accused has been rightly discarded.

10. The  academic  distinction  between  "murder"  and

"culpable  homicide  not  amounting  to  murder"  has  always

vexed  the  courts.  The  confusion  is  caused,  if  courts  losing

sight of the true scope and meaning of the terms used by the

legislature  in  these  sections,  allow themselves  to  be  drawn

into minute abstractions. The safest way of approach to the

interpretation and application of these provisions seems to be

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to keep in focus the keywords used in the various clauses of

Sections 299 and 300.  

11. In  Virsa  Singh v.  State  of  Punjab (AIR  1958  SC 465)

Vivian Bose, J. speaking for the Court, explained the meaning

and scope of clause (3). It was observed that the prosecution

must prove the following facts before it can bring a case under

Section 300 "thirdly". First, it must establish quite objectively,

that  a  bodily  injury  is  present;  secondly,  the  nature  of  the

injury  must  be  proved.  These  are  purely  objective

investigations. Thirdly, it must be proved that there was an

intention to inflict that particular injury, that is to say, that it

was not accidental or unintentional or that some other kind of

injury was intended. Once these three elements are proved to

be present, the enquiry proceeds further, and fourthly, it must

be proved that the injury of the type just described made up of

the three elements set out above was sufficient to cause death

in the ordinary course of nature. This part of the enquiry is

purely objective and inferential and has nothing to do with the

intention of the offender.  

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12. The  ingredients  of  clause  "thirdly"  of  Section  300  IPC

were  brought  out  by  the  illustrious  Judge  in  his  terse

language as follows:  

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly';  

First, it must establish, quite objectively, that a bodily injury is present;  

Secondly,  the  nature  of  the  injury  must  be proved;  These  are  purely  objective investigations.  

Thirdly, it must be proved that there was an intention  to  inflict  that  particular  bodily injury,  that  is  to  say,  that  it  was  not accidental  or  unintentional,  or  that  some other kind of injury was intended.  

Once these three elements are proved to be present, the enquiry proceeds further and,  

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part  of  the  enquiry  is  purely  objective  and inferential  and  has  nothing  to  do  with  the intention of the offender."  

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13. The learned Judge explained the third ingredient in the

following words (at page 468):  

"The  question  is  not  whether  the  prisoner intended to inflict a serious injury or a trivial one  but  whether  he  intended  to  inflict  the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances  justify  such  an  inference, then,  of  course,  the  intent  that  the  section requires is not proved. But if there is nothing beyond  the  injury  and  the  fact  that  the appellant  inflicted  it,  the  only  possible inference  is  that  he  intended  to  inflict  it. Whether  he  knew  of  its  seriousness,  or intended  serious  consequences,  is  neither here  nor  there.  The  question,  so  far  as  the intention  is  concerned,  is  not  whether  he intended  to  kill,  or  to  inflict  an injury  of  a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the  intention  to  cause  it  will  be  presumed unless  the  evidence  or  the  circumstances warrant an opposite conclusion."  

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14. These observations of Vivian Bose, J. have become locus

classicus. The test laid down by  Virsa Singh case (supra) for

the  applicability  of  clause  "thirdly"  is  now ingrained  in  our

legal system and has become part of the rule of law. Under

clause  thirdly  of  Section  300  IPC,  culpable  homicide  is

murder,  if  both the following conditions are satisfied i.e.  (a)

that the act which causes death is done with the intention of

causing death or is done with the intention of causing a bodily

injury;  and  (b)  that  the  injury  intended  to  be  inflicted  is

sufficient in the ordinary course of nature to cause death. It

must  be  proved  that  there  was  an  intention  to  inflict  that

particular  bodily  injury  which,  in  the  ordinary  course  of

nature, was sufficient to cause death viz. that the injury found

to be present was the injury that was intended to be inflicted.  

15. Thus, according to the rule laid down in Virsa Singh case

(supra) even if the intention of the accused was limited to the

infliction of  a  bodily  injury sufficient  to  cause  death  in the

ordinary course of nature, and did not extend to the intention

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of causing death, the offence would be murder. Illustration (c)

appended to Section 300 clearly brings out this point.  

16. Clause (c) of Section 299 and clause (4) of Section 300

both require knowledge of the probability of the act causing

death. It is not necessary for the purpose of this case to dilate

much on the distinction between these corresponding clauses.

It will be sufficient to say that clause (4) of Section 300 would

be applicable where the knowledge of the offender as to the

probability  of  death  of  a  person  or  persons  in  general  as

distinguished  from  a  particular  person  or  persons  -  being

caused from his imminently dangerous act, approximates to a

practical certainty. Such knowledge on the part of the offender

must be of the highest degree of probability, the act having

been  committed  by  the  offender  without  any  excuse  for

incurring the risk of causing death or such injury as aforesaid.

17. The above  are  only  broad guidelines and not cast-iron

imperatives. In most cases, their observance will facilitate the

task of the court. But sometimes the facts are so intertwined

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and the second and the third stages so telescoped into each,

that it may not be convenient to give a separate and clear cut

treatment  to  the  matters  involved  in  the  second  and  third

stages.  

18. The position was illuminatingly highlighted by this Court

in State of A.P. v.  Rayavarapu Punnayya (1976 (4) SCC 382),

Abdul Waheed Khan alias Waheed and Ors. v.  State of A.P.

(2002 (7) SCC 175) and Raj Pal and Ors. v. State of Haryana

(2006 (8) SCC 678).  

19. It  is  to  be  noted  that  Heeralal  has  stated  that  the

appellant  had  assaulted  both  legs,  thigh  and  hands  of  the

deceased  with  pharsa.  He  chopped  both  the  legs  of  the

deceased  who  died  instantaneously.  Beerbali’s  (P.W.5)

evidence was also to similar effect.  

20. It is nobody’s case that the appellant had assaulted any

of the accused or that he had participated in the quarrel.  

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21. Learned counsel for the appellant submitted that since

he was present at the place of occurrence, it is but natural on

the part of the accused appellant to assume that he may have

assaulted  him.   Mere  presence  of  a  person  at  the  place  of

quarrel is not sufficient to show that he had any intention to

cause any injury.   In the instant case, even that intention is

not  manifest  and  in  any  event,  any  intention  to  do  an act

cannot be counteracted by actual assault.  Even deceased was

not armed.

22. In the instant case, in a brutal manner the appellant had

chopped  both  legs  of  the  deceased  and  with  the  weapon

caused  other  injuries  on  the  body  of  the  deceased.  Above

being the position, there is no scope for interference in this

appeal. The appeal is dismissed.  

…………………………..J. (Dr. ARIJIT PASAYAT)

………………………….J. (P. SATHASIVAM)  

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New Delhi, July 7, 2008

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